Opinion
H044118
03-14-2017
J.H., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent, SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. DP002866)
I. INTRODUCTION
J.H. is the mother of T.H., the child at issue in this juvenile dependency case. The mother has filed a petition for extraordinary writ seeking review of the juvenile court's orders following a Welfare and Institutions Code section 366.26 permanency planning hearing. (See § 366.28, subd. (b)(1).) The mother challenges the Santa Cruz County Human Services Department's decision not to place the child with the maternal grandmother and the juvenile court's failure to hold an evidentiary hearing on the mother's section 388 petition. For reasons that we will explain, we will deny the mother's petition for extraordinary writ.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Proceedings
This court previously reviewed the proceedings in this case from the filing of the initial dependency petition through the termination of the mother's reunification services and setting of a permanency planning hearing, in an opinion issued after the mother filed a petition for extraordinary writ. (J.H. v. Superior Court (Oct. 13, 2015, H042562) [nonpub. opn.].) This court reviewed further proceedings in this case—the juvenile court's denial of the mother's initial section 388 petition and its selection of adoption as the permanent plan—in an opinion filed after the mother appealed. (In re T.H. (May 5, 2016, H043056 & H043066 [nonpub. opn.].) On our own motion, we take judicial notice of the prior proceedings and briefly set forth those facts. (Evid. Code, § 452, subd. (d)(1).)
On December 30, 2013, the Santa Clara County Department of Family and Children's Services filed a second amended petition under section 300, subdivision (b) [failure to protect] alleging that the 16-month-old child came within the jurisdiction of the juvenile court. The child had been taken into protective custody following the mother's arrest for being under the influence of a controlled substance, felony possession of a controlled substance, and child endangerment. The child was living with the maternal grandmother in Aptos. The child's half-brother was also living with the maternal grandmother, who was seeking to become his legal guardian.
On February 5, 2014, the Santa Clara County juvenile court ordered the child released to the mother on the condition that she continue to reside at a residential treatment program and comply with its conditions. On March 5, 2014, the Santa Clara County juvenile court sustained the section 300 petition, ordered the child remain with the mother on family maintenance services, and ordered the case transferred to Santa Cruz County. On April 24, 2014, the Santa Cruz County juvenile court accepted the transfer-in.
While on family maintenance services, the mother was arrested for possession of a controlled substance twice. At the six-month review hearing held on November 13, 2014, the juvenile court ordered family maintenance services to continue. At the 12-month review hearing held on April 16, 2015, the juvenile court again ordered family maintenance services to continue.
The Santa Cruz County Human Services Department (the Department) filed a section 387 petition on May 8, 2015. The mother had been asked to leave her residential treatment program because of staff concerns that she was "actively using substances" and had tampered with an oral swab drug test. The mother had admitted cheating on her urine tests, and program staff had found urine samples and methamphetamine hidden in a child's toy in the mother's room. The father was in jail facing murder charges. The child was detained, and by June 5, 2015, she had been placed with a paternal aunt.
After a contested hearing held on July 8, 2015, the juvenile court sustained the section 387 petition, ordered the child removed, and denied reunification services to the mother due to her chronic drug use and failed attempts at treatment, pursuant to section 361.5, subdivision (b)(13). The juvenile court denied reunification services to the father due to his incarceration, pursuant to section 361.5, subdivision (e). The juvenile court set a permanency planning hearing for October 22, 2015. At a subsequent placement hearing, the juvenile court ordered the child placed with the paternal aunt, finding that the opportunity for permanency with the paternal aunt and uncle, combined with safety concerns about placement with the maternal grandmother, outweighed the child's sibling relationship.
Section 361.5, subdivision (b)(13) provides that the juvenile court may deny reunification services if it finds, by clear and convincing evidence, "[t]hat the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
Section 361.5, subdivision (e) provides that the juvenile court may deny reunification services if the parent or guardian is incarcerated and the court determines, by clear and convincing evidence, that those services would be detrimental to the child. --------
The mother filed a petition for extraordinary writ in this court, challenging the juvenile court's orders sustaining the Department's section 387 petition, denying reunification services, and setting the matter for a section 366.26 permanency planning hearing. On October 13, 2015, this court filed an opinion denying the mother's petition for extraordinary writ.
On October 26, 2015, the mother filed a section 388 petition, asking the juvenile court to set aside the section 366.26 permanency planning hearing and order reunification services. The juvenile court summarily denied the mother's section 388 petition on October 30, 2015.
A section 366.26 permanency planning hearing took place on December 16, 2015. The mother's attorney argued that the juvenile court should not terminate her parental rights because both the beneficial parent-child relationship exception and the sibling relationship exception applied. (See § 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v).) The juvenile court found overwhelming evidence that the child was adoptable. The juvenile court further found that the mother had not met her burden of proof to show the beneficial parent-child exception or the sibling relationship exception applied. The juvenile court then terminated parental rights and set a permanency review hearing for May 26, 2016.
The mother appealed following the permanency planning hearing. On May 5, 2016, this court filed an opinion affirming the juvenile court's orders.
B. Permanency Review Hearing
The Department filed a status review report on May 26, 2016. The child, who was nearly four years old, was still living with the paternal aunt, her prospective adoptive mother. When the social worker visited the home, she always found the child "looking healthy and well tended to." The child was receiving regular medical, dental, and therapeutic care. The child needed some dental procedures but was not experiencing discomfort. The child was very bonded to the paternal aunt and was thriving in her prospective adoptive home. The child was "the best of friends" with one of her prospective adoptive siblings. The child was visiting with her brother and maternal grandmother on a monthly basis, and she had visited with the mother, who had completed a 28-day residential treatment program. The child appeared to have "transition anxiety" and regression after visiting with the mother.
At a hearing held on May 26, 2016, the juvenile court found that the permanent plan of adoption continued to be appropriate. The next post-permanency planning hearing was set for November 10, 2016.
C. Section 388 Petitions and Hearing
The mother filed a section 388 petition on August 29, 2016, requesting the child be removed from her placement with the paternal aunt and uncle and be placed with the maternal grandmother. The mother alleged that the previous day, the child had reported that the paternal aunt and uncle had been spanking her "all the time," that the spanking left bruises, and that the paternal aunt was "always mad at her."
The maternal grandmother filed a section 388 petition the next day, also reporting that the child had complained of spanking. The maternal grandmother further claimed that the child felt alienated by the paternal aunt's biological children and that the child had not been "afforded interaction with children outside of the household." The maternal grandmother also asserted that she had smelled alcohol on the paternal aunt's breath during visits, and she complained that the paternal aunt had not yet followed up on the child's dental needs. She claimed the paternal aunt's home reeked of urine, contained animal feces, and had "a sink full of dirty dishes and overflowing garbage cans."
The juvenile court set a hearing on whether to grant or deny an evidentiary hearing as to both section 388 petitions for September 20, 2016.
At the September 20, 2016 hearing, counsel for the Department informed the juvenile court that the Department was in the process of completing its investigation into the allegations of abuse by the paternal aunt and that the investigation was "on its way to an unfounded." Counsel for the child agreed that because the investigation was "about to have an unfounded finding," there was no basis for removing the child from the paternal aunt's care.
The juvenile court declined to hold an evidentiary hearing on the section 388 petitions, finding that "continuing to re-litigate" placement "based upon unsubstantiated allegations of abuse from biased reporters" was not in the child's best interest. The juvenile court also found that collateral estoppel prevented the mother and maternal grandmother from challenging the prior orders terminating parental rights and denying placement with the maternal grandmother.
The mother filed a notice of appeal from the juvenile court's orders on October 7, 2016 (In re T.H., H044033). As to the appeal, the mother's appellate counsel filed a letter brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, indicating she could find no arguable issues on appeal. The mother did not submit a request to file a supplemental brief on her own behalf, and the maternal grandmother did not file a brief, so on January 9, 2017, this court dismissed the appeal as abandoned.
The mother also filed on November 1, 2016 an application for extension of time to file a notice of intent to file a writ petition. On November 16, 2016, this court granted her request for an extension of time. The notice specifies that the writ petition challenges the juvenile court's orders at the September 20, 2016 hearing.
III. DISCUSSION
In her petition for extraordinary writ, the mother contends the Department abused its discretion by refusing to consider placing the child with the maternal grandmother. She contends the juvenile court abused its discretion by failing to hold an evidentiary hearing on her August 29, 2016 section 388 petition. She contends the juvenile court violated the child's due process rights by failing to ensure the child's safety in her placement. She contends the juvenile court should have ordered a full investigation of the reported child abuse.
All of the mother's arguments pertain to the juvenile court's September 20, 2016 findings and order denying her August 29, 2016 section 388 petition. Although the mother characterizes the juvenile court's order as a placement order, this is inaccurate. "[A]n order denying a section 388 petition is not a specific placement order." (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1443 (Daniel C.).) An order denying a section 388 petition is an appealable order, not one that requires the filing of a petition for extraordinary writ pursuant to section 366.28, even under the circumstances here, where the mother's section 388 petition was filed "after the termination of parental rights to change the placement of a dependent child." (Daniel C., supra, at p. 1444; see also In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) Permitting a party to separately challenge the denial of a post-termination section 388 petition by way of both an appeal and a writ petition would result in "confusion." (Daniel C., supra, at p. 1445.)
Since the mother's challenges to the juvenile court's September 20, 2016 orders are not "within the realm of section 366.28" (Daniel C., supra, 141 Cal.App.4th at p. 1444), and since we have already disposed of her appeal from the juvenile court's orders at the September 20, 2016 hearing on her section 388 petition, we will deny the mother's petition for extraordinary writ.
IV. DISPOSITION
The petition for extraordinary writ is denied.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.